Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act

15 December 2022

New Zealand is a step closer to becoming Smokefree by 2025 with the enactment of the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act this week.

The Amendment Act amends the Smokefree Environments and Regulated Products Act 1990 and introduces major reforms that seek to reduce the availability of smoked tobacco products, reduce disparities in smoking rates and smoking related illnesses between New Zealand population groups, and prevent young people and future generations from ever taking up smoking.

Three key reforms in the Amendment Act are:

  1. A cap on the number of retail premises who can sell smoked tobacco products
  2. A reduction in the amount of nicotine allowed in smoked tobacco products
  3. A prohibition on selling smoked tobacco products to anyone born on or after 1 January 2009.

1. Cap on number of approved smoked tobacco retail premises

From 1 July 2024, no person will be able to sell smoked tobacco products unless they are approved by the Director-General of Health to be a smoked tobacco retailer.  Contraventions of this strict liability offence without reasonable excuse could result in a maximum fine of NZ$400,000.

The Amendment Act introduces a cap of 600 retail premises.  By comparison, currently there are estimated to be 6,000 retailers that sell smoked tobacco products.  The Director-General must consider whether to:

  • Establish a maximum number of retail premises lower than this cap
  • Separate New Zealand into separate geographic areas and establish a maximum number of retail premises for each area.

The new cap on the number of retail premises raises the question of how the 6,000 current retailers will be reduced down to 600 retail premises.  The Amendment Act addresses this by:

  • Specifying minimum requirements that a person (or entity) must meet before they can be approved to sell smoked tobacco products, including 'fit and proper' requirements
  • Providing that the Director-General must determine and publish the application process, and consider any other requirements set out in regulations.

There are specific consultation requirements on the Director-General before determining the application process.  That consultation process will provide interested parties with an opportunity to comment on how they think the application process should work and what criteria they believe the Director-General should consider.

2. Limit on nicotine levels in smoked tobacco products

From 1 April 2025, the sale, manufacture, import, or supply of smoked tobacco products with a nicotine level of more than 0.8mg/g will be prohibited.  The purpose of this prohibition is to reduce the appeal and addictiveness of smoked tobacco products (currently per cigarette there is approximately 10-15mg of nicotine).  Failure to comply with this prohibition will be an offence that carries a maximum fine of NZ$400,000.  Further limits and prohibitions are also able to be imposed down the track.

Every manufacturer and importer of smoked tobacco products must conduct tests in accordance with any applicable regulations to ensure that their products comply with this limit.  Failure to do so will be an offence that carries a maximum fine of NZ$10,000.

3. Prohibition on the sale of smoked tobacco products to the smokefree generation

In what is reported as a world-first reform, from 1 January 2027 the sale of smoked tobacco products, and the supply of smoked tobacco products in a public place, to anyone born on or after 1 January 2009 (referred to as the 'smokefree generation') will be prohibited.  This is to prevent young people and future generations from smoking.  Currently, retailers are already prohibited from selling smoked tobacco products to the smokefree generation because they are under the age of 18.  However, by the time those in the smokefree generation turn 18, the prohibition will have commenced.  Any person who contravenes the prohibition will commit an offence and be liable to a maximum fine of NZ$150,000 (for sale) and NZ$50,000 (for supply in a public place).

There is more work to be done to implement these reforms, including the development of a range of regulations, and various formal decisions will have to be made by the Director-General.

This article was co-written by Alastair Hercus (partner), Diana Thomas (senior associate) and Emily Tyler (solicitor).